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S3249 - Details

S3249 - Summary

Waives the state's sovereign immunity to liability for violations of the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the Age Discrimination Act, and the Family and Medical Leave Act; also waives the immunity of all instrumentalities and political subdivisions of the state.

S3249 - Sponsor Memo

BILL NUMBER:S3249
TITLE OF BILL: An act to amend the civil rights law, in relation to
waiving the state's sovereign immunity to claims under the Americans
with Disabilities Act of 1990, the Fair Labor Standards Act of 1938,
the Age Discrimination in Employment Act of 1967, and the Family and
Medical Leave Act
PURPOSE OR GENERAL IDEA OF BILL: This bill waives the State's
sovereign immunity with regard to application of the Americans with
Disabilities Act of 1990; the Age Discrimination in Employment Act of
1967; the Fair Labor Standards Act of 1938; and the Family and Medical
Leave Act of 1993 as they apply to the protection of state employees.
It also waives the immunity of all instrumentalities and political
subdivisions of the state.
SUMMARY OF SPECIFIC PROVISIONS: This bill will restore the rights of
state employees to sue the State of New York for damages due to
violations of the Americans with Disabilities Act (ADA), the Age
Discrimination in Employment Act (AREA), the Fair Labor Standards Act
(FLSA) and preserve their rights under the Family and Medical Leave
Act (FMLA). This would allow the State of New York to be sued in state
or federal court for any violation of the rights of state employees
under these federal statutes, including the ADA's access and
accommodation standards. In addition, it will insure the right of
people with disabilities to bring a civil action against the state for

failure to provide access for the disabled public to government
services, programs and activities.
JUSTIFICATION: On February 22, 2001, the US Supreme Court ruled in
Board of Trustees v. Garrett that in the enactment of the ADA, the US
Congress had exceeded its power to authorize lawsuits by residents
against their own states under the 11th Amendment.
On January 11, 2000 the US Supreme Court ruled in Kimel, J. Daniel Jr.
v. Florida Board of Regents that in the enactment of the AURA, the US
Congress had exceeded its power to authorize lawsuits by residents
against their own states under the 11th Amendment.
On June 23, 1999 the US Supreme Court ruled in Alden, John v. Maine
that a state's immunity from suit under FLEA is beyond congressional
power to abrogate by Article I legislation.
These rulings allow states to opt to hold themselves to the standards
that were originally set out by the ADA, the ADEA, and the FLSA prior
to those decisions by waiving their sovereign immunity and thereby
permitting actions in state and federal courts. These rulings
effectively took away the protection for state employees under these
laws while upholding the same protection for privately employed
individuals, creating a disparity. This bill will ensure that all
employees, including those employed by the state, have the same
protections as they have had under the ADA since 1990 and under AURA
and FLSA since they were amended in 1974 to include states. Waiver
under the ADA will provide redress for failure to accommodate state
employees with disabilities and failure to provide access for the
disabled public to government services, programs and activities.
On May 27, 2003, the US supreme Court ruled in Nevada Department of
Human Resources v. Hibbs that the family medical care provision of
FMLA is a valid exercise of congressional power to abrogate the
states' 11th Amendment immunity from suit by individuals, because it
remedies gender discrimination. Since then two of the six Justice
majority have been replaced, raising speculation that this decision
may later be overturned. In addition, the U.S. Supreme Court has not
yet ruled on the personal medical leave provision of FMLA. A number of
federal courts have concluded that the personal medical leave
provision of FMLA was not validly enacted under congress' enforcement
power, making it likely to be declared an invalid exercise of
Congressional power when it does reach the U.S. Supreme Court. As with
ADA, ADEA and FLSA, a state will be required to consent unequivocally
to a waiver of its sovereign immunity, to ensure that state employees
have the same protection as private sector employees under the FMLA.
PRIOR LEGISLATIVE HISTORY: 2001-02: A.5971; Same as S.5493 Passed
Assembly 2003-04: A.5511; Passed Assembly 2005-06: A.2159; Passed
Assembly 2007-08: A.7653; Same as S.6698 Referred to Codes 2009-10:
A.3651; S.2833
FISCAL IMPLICATIONS: No change in fiscal liability.
EFFECTIVE DATE: Immediately.

S T A T E O F N E W Y O R K
________________________________________________________________________
3249
2013-2014 Regular Sessions
I N S E N A T E
January 31, 2013
___________
Introduced by Sens. KRUEGER, BRESLIN, DIAZ, HASSELL-THOMPSON, PERKINS,
STAVISKY, STEWART-COUSINS -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the civil rights law, in relation to waiving the state's
sovereign immunity to claims under the Americans with Disabilities Act
of 1990, the Fair Labor Standards Act of 1938, the Age Discrimination
in Employment Act of 1967, and the Family and Medical Leave Act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The civil rights law is amended by adding a new section 16
to read as follows:
S 16. WAIVER OF STATE IMMUNITY. THE STATE HEREBY WAIVES ITS SOVEREIGN
IMMUNITY WITH REGARD TO ALL CLAIMS, ACTIONS AND PROCEEDINGS BROUGHT
PURSUANT TO THE FEDERAL AMERICANS WITH DISABILITIES ACT OF 1990 (P.L.
101-336, AS AMENDED), THE FEDERAL FAIR LABOR STANDARDS ACT OF 1938, THE
FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AND THE FEDERAL
FAMILY AND MEDICAL LEAVE ACT. THE PROVISIONS OF SUCH ACTS SHALL APPLY
TO THE STATE, AND ANY INSTRUMENTALITY OR POLITICAL SUBDIVISION THEREOF.
S 2. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after February 21, 2001.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00911-01-3

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